The Struggle for Free Speech in the United States, 1872-1915: Edward Bliss Foote, Edward Bond Foote, and Anti-Comstock Operations (Studies in American Popular History and Culture)

156 Pages·2007·0.79 MB·English

by  Janice Wood

Studies in American Popular
History and Culture
Edited by
Jerome Nadelhaft
University of Maine
A Routledge Series
Studies in American Popular
History and Culture
Jerome Nadelhaft, General Editor
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1800s the Antebellum Northeast, 1834-1848
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Revolution Susan M. Ouellette
Vikki J. Vickers
Women Workers on Strike
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Discord Unionists
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Massachusetts, 1630-1655
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Timothy L. Wood
HUAC and the Evolution of the Red
The Quiet Revolutionaries Menace, 1935–1950
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Welfare Paradigm of Lewiston, Maine
Negotiating Motherhood in
Susan P. Hudson
Nineteenth-Century American
Cleaning Up Literature
The Transformation of Domestic Service Mary McCartin Wearn
in Twentieth Century New York City
The Gay Liberation Youth
Alana Erickson Coble
Movement in New York
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Women’s Bookstores in the Stephan L. Cohen
United States
Gender and the American
Junko R. Onosaka
Temperance Movement of the
Great Depression and the Nineteenth Century
Middle Class Holly Berkley Fletcher
Experts, Collegiate Youth and Business
The Struggle For Free Speech in
Ideology, 1929–1941
the United States, 1872–1915
Mary C. McComb
Edward Bliss Foote, Edward Bond
Labor and Laborers of the Loom Foote, and Anti-Comstock Operations
Mechanization and Handloom Weavers, Janice Ruth Wood
1780–1840
Gail Fowler Mohanty
The Struggle for Free Speech in
the United States, 1872–1915
Edward Bliss Foote, Edward Bond Foote, and
Anti-Comstock Operations
Janice Ruth Wood
New York London
First published 2008
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Portions of Chapters Three and Four appear in “Prescription for a Periodical: Medicine, Sex,
and Obscenity in the 19th Century, as told in Dr. Foote’s Health Monthly,” American Periodicals
volume 18, no.1 (2008).
Portions of Chapter Five appear in “Ida Craddock: Sentenced to Free-Speech Martyrdom,” Seek-
ing A Voice: Images of Race and Gender in the 19th Century Press, eds: David B. Sachsman, S.
Kittrell Rushing, and Roy Morris Jr., Purdue University Press.
All rights reserved. No part of this book may be reprinted or reproduced or utilised in any
form or by any electronic, mechanical, or other means, now known or hereafter invented,
including photocopying and recording, or in any information storage or retrieval system,
without permission in writing from the publishers.
Trademark Notice: Product or corporate names may be trademarks or registered trademarks, and
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Library of Congress Cataloging-in-Publication Data
Wood, Janice Ruth.
The struggle for free speech in the United States, 1872-1915 : Edward Bliss Foote, Edward Bond
Foote, and anti-Comstock operations / by Janice Ruth Wood.
p. cm.— (Studies in American popular history and culture)
Includes bibliographical references and index.
ISBN 0-415-96246-3
1. Freedom of speech—United States—History. 2. Foote, Edward B. (Edward Bliss), 1829–1906.
3. Foote, Edward B. (Edward Bond), 1854–1912. I. Title.
JC591.W66 2008
323.44’3097309034—dc22 2007031099
ISBN 0-203-93225-0 Master e-book ISBN
ISBN10: 0-415-96246-3 (hbk)
ISBN10: 0-203-93225-0 (ebk)
ISBN13: 978-0-415-96246-9 (hbk)
ISBN13: 978-0-203-93225-4 (ebk)
Contents
Chapter One
Introduction 1
Chapter Two
Historical Background 11
Chapter Three
Legal Encounters with Comstock 39
Chapter Four
Free-Speech Organizational Activities 62
Chapter Five
Personal Involvement in Free-Speech Cases 84
Chapter Six
Conclusions 107
Appendix 129
Notes 131
Bibliography 135
Index 145
v

Chapter One
Introduction
According to a fable written in 1881, a venomous spider cast a web over
the insect community that kept alien moths out of the garden paradise.
However, it also trapped butterflies, considered important for pollination.
The bumblebee lawmakers, strong enough to fly through the web, ignored
complaints from the garden’s weaker residents about the harsh methods
used by the spider, who bore “on his broad dark back a growth of dirty
white down, forming for all the world hieroglyphics which could be clearly
interpreted as the letters A and C” (Foote Sr., 1881, p. 3).
The A and C stood for Anthony Comstock (1836–1915), the mor-
alistic New York crusader who spearheaded the national laws that gave
postal officials license to remove from the mail any items they deemed
“obscene, lewd or lascivious” or “of indecent character” (Fowler, 1977,
p. 62–3). Written by Dr. Edward Bliss Foote (1829–1906), the fable
warned readers of the immediate dangers imposed by the Comstock Laws
on freedom of the press, particularly for literature on sex education. The
cause was personal for Foote, he explained in 1881 (pp. 11–13). He had
felt the sting of Comstock’s actions with the suppression of birth control
information that appeared in the home medical books that Foote mailed
to customers nationwide from his New York City medical practice in the
mid-19th Century.
After presenting the spider fable in a booklet, Dr. Foote then cited a
few legal cases that exemplified threats he had seen to free speech, including
his own. He and his son, Dr. Edward Bond Foote (1854–1912), sought to
repeal the Comstock Act while working with the National Liberal League,
which eventually splintered over the issue. The Footes led the more radical
faction to form the National Defense Association in 1878 for the financial
and moral support of Comstock defendants. At the turn of the century,
their leadership and money helped launch the Free Speech League when
1
2 The Struggle for Free Speech in the United States, 1872–1915
new laws against anarchist speech added yet another peril for freedom of
expression (Rabban, 1997, pp. 24–5).
However, the two doctors Foote have been recorded in history pri-
marily as pioneers in birth control or as publishers of popular medical
books for the general public. But even in the late 19th Century, they stood
out among physicians promoting contraception as “conscious, articulate
social reformers” (Gordon, 2002, p. 111) with free speech being a favor-
ite cause. This study illuminates the “forgotten” period in free speech
between the Civil War and World War I (Rabban, 1997, Foreword) by
examining the valuable contributions made by Edward Bliss Foote and
Edward Bond Foote to organizations that mounted resistance to the Com-
stock laws on obscenity.
It is important here to note for clarification the manner in which the
two Footes will be mentioned; with two such similar names a discussion
can become confusing. The father and son were not actually a senior and
junior because their middle names differed. However, during their lifetimes
the two men were known as E. B. Foote (or E. B. Foote Sr.) and E. B. Foote
Jr.; therefore, calling them Foote Sr. and Foote Jr. is truer to the record than
using the strictly proper forms.
ENVIRONMENT FOR FREE SPEECH
The period in which the Footes worked has been described by legal scholar
David Rabban as the forgotten years of free speech because previous gen-
erations of researchers had considered the period between the Civil War
and World War I devoid of First Amendment significance. In a 1997 book
titled Free Speech in Its Forgotten Years, Rabban contended that the court
battles related to sex reformers (such as the Footes in the area of birth con-
trol) and proponents of anarchism and socialism had been largely ignored
under the assumption that the period produced no legal decisions and
scholarship of significance for future generations in handling issues related
to freedom of expression.
Rabban’s section on “The Lost Tradition of Libertarian Radicalism”
(Chapt. 1) prominently features the discord surrounding the Comstock
Act, including the work of the Footes and the First Amendment schol-
arship of Theodore Schroeder, a close colleague of the Footes. Rabban
regarded the National Defense Association and the Free Speech League
as bastions of the free-speech principles that inspired the American Civil
Liberties Union (p. 24).
According to Rabban, post-World War I progressive thinkers (includ-
ing legal scholar Zechariah Chafee and members of the ACLU) perceived
Introduction 3
the value of free speech differently from their predecessors. They promoted
its value to political democracy rather than its status as an inherent right
of individuals (p. 4) and distanced themselves from prewar disputes over
sex-related issues and the labor violence of the Industrial Workers of the
World, or “Wobblies.” Such controversies had left a trail of repression and
unfavorable judicial decisions that might have hampered the progressives’
new vision for free speech (p. 5).
Amid the forgotten years, Anthony Comstock launched his campaign
against obscenity from the YMCA in New York City. He set his sights on
national legislation to thwart those who defied Victorian sensibilities and
thereby posed imminent threats to the innocence of children and the moral
fabric of America. After scant debate, Congress passed the bill he proposed
that became known as the Comstock Act (Horowitz, 2002, p. 382). The
maximum fine specified was $5,000, and prison terms ranged up to 10
years. As amended in 1876, the act declared:
Every obscene, lewd, or lascivious book, pamphlet, picture, paper, print,
or other publication of an indecent character, and every article or thing
designed or intended for the prevention of conception or procuring
of abortion . . . are hereby declared to be non-mailable matter, and
shall not be conveyed in the mails, nor delivered from any post office
nor by any letter carrier; and any person who shall knowingly deposit,
or cause to be deposited, for mailing or delivery, anything declared in
this section to be non-mailable matter . . . shall be deemed guilty of a
misdemeanor. . . . (Fowler, 1977, pp. 62–3)
KEY CONTRIBUTIONS OF THE FOOTES
Even before the passage of the national Comstock laws, its namesake
had already encountered resistance from E. B. Foote Sr. The older doctor
had been the sole opponent of legislation Comstock proposed to the New
York state assembly in 1872. Foote Sr. would later assert that Comstock
retaliated by prosecuting him for the Words in Pearl for Married People
Only pamphlet inserted into his popular medical books. The doctor was
convicted and fined $3,500 for mailing information to married couples
about birth control and the contraceptives he offered for sale (Sears,
1977, p. 195).
The doctor’s legal struggle galvanized a group of social reformers bent
on liberalizing the restrictive attitudes toward sex that dominated Victorian
society. In the three previously mentioned organizations, they challenged